March
1899
FROM
the chancery court, second district, Coahoma county, HON. A
H. LONGINO, Chancellor.
Reuben
Shotwell and Mary C. Shotwell, appellees, were the
complainants in the court below; Millsaps and others
appellants, were defendants there.
One
Robert Shotwell was the owner of an undivided one-half
interest in the land in controversy, and Bourbon Shotwell
Sr., his son, was the owner of the other half interest.
Robert Shotwell had two other sons, Reuben and Andrew L
Shotwell. Robert died, leaving a will, which was duly
probated and recorded, and of which the following clauses are
material on the questions involved:
"Article
4. I have, by article 3, as above, of this will, given the
one-half of my estate to my son, Bourbon Shotwell. I will
hereby that the other half of my estate shall be given to my
son, Reuben Shotwell, whom I had by my second marriage with
Annie Hay, should my said son, Reuben, appear to claim it, or
his children, if he shall have any, should he not be in life.
My said son, up to this date, since the conclusion of the
late war, has not appeared, and his fate is uncertain. Should
he be in life to inherit under this will according to its
provisions, I will that he shall only have the right to enjoy
and possess the income of the property hereby given to him,
and that at his death it shall descend to, and be inherited
by, his children equally.
"This
property given my said son, Reuben, shall be held by my sons,
Bourbon and Andrew L. Shotwell, as trustees, to whom, as
such, I hereby convey the legal title, to be held by them,
and the income of said property to be paid to my said son,
Reuben, as it may be necessary and proper for the maintenance
of himself and family, should he have one, and for no other
purpose whatever.
"I
make this provision and arrangement in his behalf on account
of his dissipated habits and unfitness to have the care of
property.
"Article
5. Should my son, Reuben Shotwell, aforementioned, not be in
life, or have children to inherit after him, I then will and
direct that my said son, Bourbon, have the whole of my
estate, both real and personal, and be my universal legatee.
"Article
6. In the management of that part of my estate that may be
set apart under the above and foregoing will to my said son,
Reuben Shotwell, I will and direct that my said sons have the
power and right to manage said property as if it was their
own; to sell and buy and invest any of the funds that they
may thus hold as trustee, in any way they may think proper
and for the interest of said son or his children, should he
have any.
"I
will, however, that should my said son become or be a
temperate and prudent man uniformly for five years, thus
showing himself to be trustworthy, it is my will he then have
his property delivered to him unconditionally, to hold in his
own proper right."
The
agreement between Bourbon and Reuben Shotwell, referred to by
the court, is and was as follows, viz:
"QUITMAN
COUNTY, Miss. Feb. 1, 1878.
"WHEREAS,
the late Robert Shotwell, at his death on the twenty-second
February, 1872, by his last will and testament willed and
devised his property to Bourbon Shotwell absolutely and to
Reuben Shotwell upon certain conditions fully set forth and
stated in said will, share and share alike; now, therefore,
"Be
it known: That, with the view of avoiding trouble, expense
and litigation, Bourbon Shotwell, as party of the first part,
and Reuben Shotwell, as party of the second part, have, this
the first day of February, 1878, made and entered into the
following agreement, to wit:
"1.
When Reuben Shotwell's part of the property shall be set
aside to him in his own right, by the proper authority, so
that said property shall vest absolutely in him, then the
party of the first part hereby obligates and binds himself to
execute to the said party of the second part a deed of
release and quitclaim to his three-fourths interest in and to
the land on the eastern side of Cassady Bayou, beginning at a
point where the land reaches the Bayou on the east below the
present ginhouse and sawmill, and following said bayou at
low-water mark up to a point a little above and opposite to
the mound on the west bank of the bayou, and then following
the meanderings of said bayou as it runs through Cypress
Brake till it crosses the center line of section 19, T. 26,
R. 2 west, all of the above land being as is supposed in
sections 30, 20 and 19, T. 26, R. 2 west, the number of acres
not being accurately known. And the said first party is also
to execute a like deed to the second party to what is known
as the paw-paw orchard, beginning at a point near the Nickle
ginhouse at the center of the northern line of section 19,
and running west till it reaches the bank of Cassady bayou,
supposed to be about 600 yards, and running down the
meanderings of said bayou to a point at which a line running
down south from the center of the north line of section 19
will intersect said bayou, and then due north back to the
center of the north line of section 19, near the Nickle
ginhouse, which last line is supposed to be about 350 yards.
"2.
Upon the execution of this deed of release and quitclaim by
the party of the first part, to three-fourths interest in the
above land, the said party of the second part is to execute a
like deed of release and quitclaim to his one-fourth interest
in all the property devised by the above named last will and
testament of Robert Shotwell, excepting only the property
above described, and supposed to be in sections 19, 30 and
20, to which the first party is to give up his interest to
the said second party.
"3.
Upon the execution of these mutual deeds, each one of the
above named parties is to give to the other a receipt in full
for all matters and transactions which have transpired up to
the date of this instrument of writing.
"4.
Of the property to which the first party is to execute his
release to the second party, as herein described, the second
party is to take charge of this present year, and to manage
and have worked for his support and profit, to the best of
his ability, and the first party is likewise to take charge
of the balance of the property, and manage and have worked to
the best of his ability.
"BOURBON
SHOTWELL. [SEAL.]
"REUBEN
SHOTWELL. [SEAL.]"
The
letter and extracts from letters, to which the court make
reference, are as follows:
Letter
from Reuben to Bourbon Shotwell:
"DUBLIN
MISS., May 2, 1878.
"BRO.
BOURB: The deed you gave me is dated February 1, and was
written April 8, and now can't be recorded to be valid;
besides, you had no right to execute the deed--your children
are concerned and some of them are minors, and the other
trustee knows nothing about the matter. Your object seems to
be to temporize and do nothing that would be binding on you.
"I
now ask you to have the matter properly arranged, so there
will be no doubts about it.
"You
say the deed was a gift from you to me. As such I don't
want it, but I want my rights only, under the will, and I
have done all I can to get you to have things fixed, to no
purpose, and I will now wait ten days to hear from you. In
the meantime I shall have to object to you, or any agent of
yours, handling the property until the thing is properly
arranged.
"I
don't wish to have any trouble in the case, but I can
stand no longer to be used by you.
"You
know you have not acted right with the property, and seemed
to be ashamed of the last accounts you brought made out by
Sturges. Yours, etc.,
"R.
SHOTWELL."
Extracts
from letters from Bourbon Shotwell to his son Walter, as
follows: Of date May 25, 1878. "Our policy must be to
hold all we have and get all we can, and in all your
transactions you must have a view to this thing. It
distresses me for you to write as you do about going away. I
cannot get along without your help, and by attention to
business, and economy, we can have in a few years a fine
income."
Not
dated: "This week I shall draw up a deed conveying to
you all the property, both real and personal, in Coahoma and
Quitman counties, in which your uncle Hammy will have to
join. I think that this sale to you by him and by me is
necessary to entirely divest the interest of Reuben's
children--then, however, the title will be perfect."
Of date
Dec. 28, 1879: "Of the reasons which induce me to make
this sale to you I will say nothing, so that, after this, if
any questions of fraud should arise, you can state on your
oath that you knew of no fraud in the matter, but that I
proposed to sell to you and you bought.
"As
to the payment, if you can make no other arrangement it can
be arranged with your mother, as she holds a judgment against
me, and, besides, I owe her for the rent of this place."
Before
suit began, Reuben Shotwell conveyed an undivided one-half of
his interest in the lands to his co-complainant, Mary C.
Shotwell. The suit was one for determination of the
complainants' right in and to the lands, and for
partition between the parties according as their respective
rights should be adjudged under the facts.
Before
this suit was begun, Bourbon Shotwell, Sr., the son of the
testator, Robert Shotwell, died, and his heirs, by deed,
partitioned the lands among themselves. One of them, Bourbon
Shotwell, Jr., conveyed to appellee, Millsaps, by deed of
trust, etc., as shown in the opinion, the lands allotted to
him in this voluntary partition.
Other
facts are stated in the opinion of the court. The defendants
in the court below appealed from the decision of that court
to the supreme court.
Reversed and remanded.
Brame &
Brame and Alexander & Alexander, for appellant.
We lay...
